Home » Commentary » Defamation in the Workplace: What Legal Rights Do Employees Have?

Amanda DeMatteis: Hi, Josh.

Josh Goodbaum: Hi, Amanda. What are we talking about today?

DeMatteis: I thought we would talk about a potential client that comes in to see us, and they say, “Hey, Josh and Amanda, my previous employer is saying bad things about me. And as a result of that, I can’t get another job.”

Now, legally, we would call that “defamation.” Why don’t you explain to our viewers what defamation is and what an employee or former employee can do if they think they are being defamed?

Goodbaum: “Defamation” is a false statement published to a third party that causes damage to the target of the statement. And I think in order to illustrate that concept for non-lawyers, it might be helpful to use a hypothetical that’s actually very similar to a case that our firm handled a few years ago.

Imagine Jeff is a pilot. Jeff worked for ABC Airlines. He resigned because he didn’t like it there or because he was moving, and he goes and tries to get a job with 123 Airlines. 123 Airlines calls ABC Airlines and say, “Hey, how is Jeff as a pilot?” And ABC says, “Oh, you know, Jeff – we had concerns about Jeff. He fell asleep in the cockpit, and we think he might have been drinking at one point. So 123, you might not want to hire him.” 123 calls Jeff back and says, “You know, we would hire you, but here’s what ABC said about you, so we just can’t do it anymore. Sorry.”

That is a really strong case of defamation assuming that there’s actually no evidence that Jeff fell asleep in the cockpit, let alone that he was intoxicated in the cockpit. And let’s walk through that.

First: It’s a false statement of fact, not a statement of opinion. Whether somebody fell asleep is provable. Whether somebody was intoxicated is provable. That’s different than saying Jeff didn’t have great instincts as a pilot, right? Or great judgment as a pilot? Those are more along the line of opinion, and opinion is not challengeable as defamation. It’s got to be a statement of fact.

Next, the statement has to be published to a third party. What does that mean? It means it can’t just be a conversation between Jeff and his former employer, ABC. It’s got to go to somebody else. Here, the somebody else is 123. So ABC, the old employer, is talking to 123, the new employer, and saying something about Jeff that is provably false.

Third, it’s causing real damage to Jeff. He would have gotten this job with 123, but ABC got in the way. So, he can prove, “I would have had a job except for the fact that ABC said this false thing about me to a third party.”

And there’s an additional barrier that Jeff needs to get over in this circumstance, which is that Connecticut has a qualified privilege for former employers to provide references. Your former employer is allowed to say to a potential employer, “We didn’t think this employee was that great.” And in order to get over that hump, the employee or plaintiff needs to prove that the former employer was saying something that they either knew was false or that they said with reckless disregard for its truth. In other words, the former employer really should have known – and if they demonstrated any interest in saying something true, they would have known – was false and they wouldn’t have said it.

So here, Jeff’s got a really strong case for defamation. But lots of employees unfortunately don’t.

DeMatteis: Another thing we see a lot, Josh, is an employee comes in and says, “Hey, my coworker is saying something bad about me” or “This isn’t true what they’ve said.” That’s a little bit different, right?

Goodbaum: Well, coworker defamation is more difficult for at least three reasons. One is you don’t necessarily have the publication requirement satisfied because some courts will consider the company / employer to be sort of one entity and the statement has to go outside – that is, to someone outside the company. Another reason it’s difficult is the employer hasn’t ratified that statement. So in theory, you could sue your coworker but you can’t sue your employer. And third, unless that coworker got you fired, it can be tough to prove that there were any concrete consequences for what the coworker did. So three obstacles you’re dealing with there in the context of defamation by a coworker.

DeMatteis: Really helpful. So, remember, you need a statement of fact, it needs to be published to a third party, and you need damages.

Thank you so much, Josh. That was helpful, and thank you for watching. Take care.

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